Trever v. City of Sterling Heights

• Decision Date: 18 January 1972
• Docket Number: No. 2,Docket No. 10235,2
• Citation: 195 N.W.2d 91,37 Mich.App. 594
• Parties: Joseph TREVER, Plaintiff-Appellant, v. CITY OF STERLING HEIGHTS, a municipal corporation, et al., Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 91

195 N.W.2d 91

37 Mich.App. 594

Joseph TREVER, Plaintiff-Appellant, v. CITY OF STERLING HEIGHTS, a municipal corporation, et al Defendants-Appellees.

Docket No. 10235.

Court of Appeals of Michigan, Division No. 2.

Jan. 18, 1972.

Released for Publication March 9, 1972.

Larry S. Davidow, Davidow & Davidow, Detroit, for plaintiff-appellant.

Paul J. O'Reilly, McCallum, O'Reilly & Cornell, Mt. Clemens, for defendants-appellees.

Before LESINSKI, C.J., and HOLBROOK and VanVALKENBURG, ^* JJ.

VanVALKENBURG, Judge.

The plaintiff operated an earth removal and landfill business in the Township of Sterling Heights for approximately 30 years. The governing board thereof, in 1965 enacted two ordinances governing such businesses, being ordinances number 81 and 82. These in turn were accepted by the city when it adopted a charter on July 1, 1968.

Prior thereto the plaintiff did, in fact, receive a permit for a period of one year beginning with April 1, 1968. Thereafter, he deposited the sum of $150 with the City Clerk, but did not furnish the engineering data required by the ordinances. The permit to continue business was refused. On May 26, 1970, plaintiff filed a complaint for declaratory judgment in circuit court, praying that the ordinances be declared unconstitutional as applied to his property and that an order temporarily restraining the city from enforcing the ordinances be issued. After attempts by the trial court to effectuate an out-of-court resolution of the differences between the parties failed, the city filed a motion for a summary judgment on the basis that the plaintiff had not exhausted his administrative remedies. The motion was granted. On August 10, 1970, the plaintiff filed a motion to set aside the summary judgment and to have a hearing on the merits granted. This was denied, whereupon plaintiff filed a claim of appeal on September 17, 1970.

The issue is whether or not it was necessary for him to do anything else before challenging the validity of the ordinances in court.

The generally-accepted rule can be found in 2 Am.Jur.2d, Administrative Law, § 595, p. 426:

'The doctrine of exhaustion of administrative remedies requires that where a remedy before an administrative agency is provided, relief must be sought by exhausting this remedy before the courts will act.'

Continuing on page 428:

'It involves a policy of orderly procedure which favors a preliminary administrative sifting process, particularly with respect to matters peculiarly within the competence of the administrative agency, avoidance of interference with functions of the administrative agency by withholding judicial action until the administrative process has run its course, and prevention of attempts 'to swamp the courts by a resort to them in the first instance."

It will be observed that the key words in the above quoted rule are 'where a remedy before an administrative agency is provided.' Illustrative of this point is Hutson v. Royal Oak, 28 Mich.App. 393, 184 N.W.2d 558 (1970), wherein the plaintiff attempted to secure repayment of taxes without applying to the Board of Review. Since that Board had the authority to grant the relief requested, the question was not properly raised in circuit court prior to some disposition by the Board.

The situation in the instant case is significantly different from that in Hutson, since here no element of the city government is vested with the power to determine the validity of the ordinances. If we were to require plaintiff to comply with the licensing requirements, when he asserts that such requirements are arbitrary, unreasonable and...